I am working at a small startup in the US (location not disclosed for security purpose). Initially, when I started my job I was an unpaid intern. After a while, my employer started giving me a monthly stipend for my basic expenses. He started the stipend and promised to file H1-B visa and claimed that only after the visa is approved, he would start paying me the minimum prevailing wage on H1-B ($60,000+). My H1-B was filed in April 2018. I was picked in the lottery and received an RFE in July 2018 and was approved in October 2018.
Unfortunately, in my case, both the USCIS’s case tracking websites did not update for me (uscis.gov/casestatus and myaccount.dhs). It is still showing ‘Case Was Received’. Since my employer is the only source to get any updates, he did not mention about RFE for 2 months and at the last minute, he decided to say that I have an RFE. The RFE was not that complicated and it took 10 days to prepare the response but even in that case, he asked the lawyers to send the packet as late as possible. He planned to send it so that it would be delivered on the day of the deadline and no earlier.
I called the third party law offices who represent our company and they said that “There is no lawyer on file for your case. Your entire application was filed by your employer and he consulted us only to prepare a response to RFE. We received the RFE document from your employer and not from USCIS. Even if we would have called USCIS, they would not share the information with us. Your employer is the single point of contact for this application.” (official response from one of the attorneys).
My OPT was expiring in the last week of September and I applied for the STEM Extension in the first week of September. My STEM Extension was denied in the first week of December. The rejection notice stated that I was denied because my H1-B was already approved. With this news, I was happy that at least my salary will be increased now (but did not happen yet).On my STEM Extension rejection notice, it was mentioned that your H1B was approved on October 1.
There are 2 possibilities that I think might have happened, USCIS screwed up in updating my employer and sending the approval notice (highly unlikely) or my employer knew about this and hid the fact from me, to avoid paying taxes and my increased salary.
I called USCIS and asked them about their process and they claim that even their websites are down for months, but they would send the legal notices and documents on time and it would take maximum 2 weeks to reach the employer. The customer care representative also mentioned that my case was approved on October 1 and my official starting date on H1-B is October 2.
On asking my employer about the increased pay, he states that we have not received the approval notice yet and we would increase it only when we receive the notice. He also said that we would not backdate our paychecks and if IRS inquires about the taxes then we can claim that we never received the approval notice.
As stated previously, I was approved on October 2 and the notice should’ve reached to my employer by October 20 at the max. He is claiming that he never received the notice because of the clumsiness of USCIS or maybe it got lost in the mail. He put up a new service request for a new notice which also generally takes 2 weeks to get the notice. The service request was raised in December second week and it’s still not received.
My questions to the RedBus community are:
- Even after knowing the approval date to be October 2, he is not increasing the salary to the one on LCA. Is this illegal?
- Since the employer and the employee, both have to pay taxes on H1-B visa, will this reason of “approval notice not received” work if IRS inquires about unpaid taxes?
- I am applying for jobs and hoping to get my H1-B transferred, but since I don’t have an approval notice will it hinder my transfer process?
- If a new employer files an LCA and I-129 for me, and file for an H1-B transfer, can’t USCIS directly lookup in their own records to see if I am approved or not?
- Is there any other way to know about your case status apart from the case tracking websites or the employer calling USCIS and sharing the info about the case status?
- If I file a complaint to the Dept of Labor, can he withdraw my case just out of spite?
- If I file for transfer, would he know that someone has filed for transfer and then withdraw the application out of spite?
- I called USCIS many times and they said that they can’t give any information to the beneficiary. They will only give info to petitioner or lawyer on file (which I don’t have). So will the USCIS Field Office help me in getting the approval notice of my case?
It has been more than 3 months since my H1-B is approved. I don’t even know that for how many years my H1-B is approved for. Every time a new opportunity comes up, the potential employer asks me about my visa status and the truth becomes a factor for not considering me or rejecting me. Since my STEM Extension is also rejected, I am afraid that one wrong step and he would fire me or withdraw my case. In that case, I would literally be out of status and would have to return back to my home country. It is like I am in slavery where I am stuck with my current employer and cannot do anything about it.
Any help, recommendations, advice, answers to these questions and my scenario would be very helpful. I am really depressed about my situation and can’t help myself thinking about it every single minute of my day. It would be really helpful if you could contact me at 480-465-2293 or mail me at firstname.lastname@example.org. If you could put me in touch with any legal authority or anyone who knows what the legal and right course of action is would be appreciated.